Inconsistent Treatment of Misconduct Lead to Unfair Dismissal

HR Impact April 2010

In circumstances where an employer initially treats misconduct by an employee as a relatively minor offence, can it subsequently dismiss the employee for gross misconduct based on much the same facts? In the recent case of Sarkar v West London Mental Health Trust the Court of Appeal found that a dismissal in such circumstances was not reasonable and was therefore unfair.

The facts

Mr Sarkar (“S”) was employed by West London Mental Health Trust (“the Trust”) as a Consultant Psychiatrist primarily based at Broadmoor Hospital. After a number of complaints were made about him by staff and colleagues, the Trust carried out an investigation and concluded on 25 April 2007 that disciplinary proceedings ought to be commenced against S. However, the Trust decided to use its Fair Blame Policy (“FBP”), in an attempt to resolve the issues. The FBP was effectively a mediation process under which alternatives, such as a transfer into a role in a different team, could be considered. It was designed for “fairly low level breaches of conduct or performance standards” which “do not constitute potentially serious or gross offences”. The maximum disciplinary penalty that could be awarded under the FBP was a first written warning. S agreed to the use of the FBP.

On 17 May 2007 the FBP process broke down, when the Medical Director stated that she would have to report S to the General Medical Council. S refused to agree to this due to the potentially devastating effect such a report would have on his career. S therefore withdrew from the FBP and a disciplinary hearing was held in its place. In the disciplinary process, the Trust included three additional allegations against S: an incident that occurred on 30 March 2007 when S had parked his car in an incorrect place in the hospital car park; an inappropriate email from S to a colleague on 24 May 2007; and an allegedly abusive call from S to a Service Director on 24 May 2007. The outcome of the disciplinary process was S’s dismissal for gross misconduct.

The Employment Tribunal found that the dismissal was not reasonable in the circumstances because:

1. the use of the FBP implied that the Trust viewed the misconduct as being of a relatively minor nature;

2. the additional allegations that occurred in May did not individually or cumulatively amount to gross misconduct; and

3. the FBP discussions were intentionally frustrated by the Medical Director on behalf of the Trust.

The Employment Appeal Tribunal overturned the Tribunal’s decision, as it considered that the Trust was not precluded, when the FBP broke down, from taking formal disciplinary action. It also held that the Tribunal had erred by substituting its own view of the seriousness of the allegations for that of the Trust.

The Court of Appeal restored the judgment of the Tribunal. It found that the Tribunal was entitled to hold that the use of the FBP indicated that the Trust viewed S’s conduct as relatively minor and that it was therefore inconsistent for it to subsequently dismiss S for gross misconduct. It also upheld the Tribunal’s findings that the additional allegations were minor and that the FBP had been intentionally frustrated. Accordingly, it held that the Tribunal was entitled to find S had been unfairly dismissed, as his dismissal was not reasonable in the circumstances.

Practical impact

This case clearly shows that were an employer operates two or more levels of disciplinary procedure, it is not entitled to perform a ‘volte face’ and move to a more formal or weightier procedure, unless new allegations come to light that would justify this. Similarly, if an employer initially decides not to take formal action and instead deals with misconduct in an informal manner, it cannot subsequently take formal action simply because it changes its mind. Employers should therefore carefully consider the seriousness of the allegations before deciding which procedure to use in each particular case.

Employers are also sometimes faced with cases where an employee has committed two very similar offences and the employer wishes to impose an inconsistently harsh sanction for the second offence without any additional justification. This case suggests that such a decision is unlikely to fall within the range of reasonable responses open to the employer. Accordingly, employers should ensure that the level of sanction imposed on a particular employee is consistent with that previously imposed on the individual and on other employees.